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Extending army chief’s tenure is not constitutional tradition, says CJP

The Supreme Court reserved it verdict in the petition challenging a three-year extension in Chief of Army Staff General Qamar Javed Bajwa’s tenure Thursday morning. The verdict will be announced this evening.  

It adjourned Wednesday’s hearing after six hours. The case was initially filed by the Jurists’ Foundation but after it asked to withdraw the case, the court decided to take it up itself.

Chief Justice Asif Saeed Khosa, Justice Mansoor Ali Shah and Justice Mazhar Alam Miankhel are hearing the case. For yesterday’s developments, click here. 

On Tuesday, the court suspended the official notification that extended the army chief’s tenure. Farogh Naseem resigned as federal law minister to represent General Bajwa in the case.

During Wednesday’s hearing, the judges noted that the notification from the president’s office extending General Bajwa’s tenure was an extension, not a reappointment. Attorney-General Anwar Mansoor Khan said the prime minister had recommended a reappointment. The judges quizzed the country’s top law officer on the laws governing the army chief’s appointment and tenure.

The court was also informed that the army chief’s tenure expires on Friday at midnight.

Farogh Naseem’s membership of the Pakistan Bar Council has been restored.

Today’s hearing

It was said that generals never retired, said Justice Khosa. If they never retire then what is their source of income, he asked. He summoned the complete details of this from the attorney general in 15 minutes.

The court summoned details of former COAS General (retd) Raheel Sharif’s retirement and General (retd) Ashfaq Parvez Kayani’s extension.

AGP Khan said the army chief has been reappointed under Article 243. Justice Khosa asked how today’s appointment was different from the previous one. Khan replied that today’s appointment was under Article 243 (4) B. You will have to satisfy us on how this appointment is valid, said Justice Khosa.

The summary mentions the judicial investigation into the matter, noted Justice Khosa. Shoulder the burden yourselves, he said. Why are you trying to use our shoulders, he asked.

He ordered the AGP to remove the court’s name from the summary. He told the AGP to specifically remove the part referencing the court’s advice from the summary. If the president wants our advice, that is a different matter, he said.

We will see whether the appointment is legal or not, he added.

The chief justice observed that the reappointment had been made from November 28 (today). But today General Bajwa is already the army chief, so how can a reappointment be made on a post that is not empty, he asked.

Justice Shah noted that there is no mention of a tenure of three years in the law. He said the appointment must be according to the law.

Justice Khosa noted that extensions had been given before and no one took notice. No one looked at what’s happening in the cantonments, he said. Now the court of law is looking into it, he said.

The CJP added that the law must clearly mention the appointment procedure. Justice Shah noted that the summary did not mention the army chief’s salary or privileges.

Yesterday, when we looked at the Army Act, there were calls of Indian and CIA agents, said the chief justice. The attorney general replied that India took advantage of the arguments in court.

We were made a part of “fifth generation warfare”, said Justice Khosa, reminding everyone that it is the court’s right to ask questions.

Justice Shah observed that yesterday was probably the first time the AGP had read the army laws. Suggest how we should amend the army laws, he told the AGP.

The extension notification says three years, noted Justice Khosa. If we got an amazing general, perhaps the extension summary would have 30 years written on it, he said.

This three-year appointment will now become a precedent, he said. The government may want to keep the next army chief for just one year, he said.

It should be clear whether or not a general gets a pension, said Justice Shah.

After his tenure ends, a general retires, said the attorney general. But yesterday you said generals don’t retire, reminded Justice Shah.

He said there is no better forum than Parliament to fix the system. If Parliament updates the Army Act, new rules can be made, said Justice Khosa.

I see 18 different errors in the law, said AGP Khan. Regardless of these errors, we respect the law, said Justice Khosa.

Justice Miankhel said it should also be clarified whether in the future it will be an extension or reappointment.

The attorney general assured the court that the Army Act would be put before the cabinet and necessary changes would be made.

Justice Khosa noted that this is the first time the government has returned to the Constitution. When anything is done according to the law, our hands are tied, he said. Don’t use the court’s shoulders, he warned.

He said Article 243 did not mention a three-year appointment. A three-year appointment has become a precedent but it is not legal, he said.

If the court extends the appointment, it will become precedent, said the CJP. AGP Khan said where a fixed term has not been mentioned, it is determined by the situation. It seems like at the time of the appointment, the government read Article 243 and increased it, said Justice Khosa.

Extending the army chief’s tenure is not constitutional tradition, said Justice Khosa.

Of the past three army chiefs, one received an extension, while the other didn’t, noted the CJP.

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